Saturday, December 02, 2023

Enduring Legal Scholarship

Mark Tushnet


Most legal scholarship is ephemeral but some is not. What are the characteristics of enduring legal scholarship? Her I’ll proceed sort of inductively: Suppose someone asked me to compile a reader of enduring constitutional scholarship—defined roughly as work published more than forty or so years ago that remains worth reading because it illuminates contemporary issues. What articles would I include? 

Here's a list from off the top of my head, with shorthand titles and no citations: (1) Thayer on the fundamental doctrine of judicial review. (2) Thomas Reed Powell on the “still small voice of the commerce clause” (not well known, but it makes the point that to think about the dormant commerce clause you have to start with the observation that Congress has the undoubted power under the commerce clause to preempt state regulation that interferes with interstate commerce—or, importantly, to consent to such interference). (3) Something from Ely, Democracy and Distrust, or one of the articles that worked its way into the book. (4) Something on the distinction between intentional discrimination and disparate impact discrimination—maybe Alan Freeman’s article on the victim and perpetrator perspectives in antidiscrimination law. (4) One of Geof Stone’s early articles laying out the distinction between content-based and content-neutral regulation of expression. (5) Peter Strauss on formal and functional analysis in separation of powers jurisprudence. (6) A set of articles on critical legal theory—maybe my “Critique of Rights,” Derrick Bell’s interest convergence article, and Reva Siegel’s article on preservation by transformation. (The rationale for these selections isn’t obvious because the main point of critical legal theories is to “ask the  X question,” and almost anything discernably in the critical tradition would do so.) (7) Market pressures would probably require the inclusion of something on theories of interpretation, but the field is so highly politicized that finding something that’s really enduring would be tricky. My guess is that one of Jeff Powell’s critical articles on originalism would work well. 

What gives these works their enduring power? Many deal with issues that cross doctrinal boundaries lines—transsubstantive, in the jargon. That’s not true of the Powell article, though, at least if one doesn’t do a lot of massaging to show that it’s really about the distinctive characteristics of Congress and the Supreme Court (so, an early Legal Process article). And it might not be true of the free expression article, though the scope of free expression is so broad that maybe we could call the field a transsubstantive one. 

I think a better characterization is that the articles identify some things about the deep structure of the topics they cover. They provide a vocabulary for discussing the issues within their scope no matter what those issues are—yesterday’s issues, today’s, and tomorrow’s (even though we don’t know what tomorrow’s will be (consider how Powell’s article written in the 1930s, tells how to think about state regulation of ChatGPT). That also removes them from immediate political controversies; you can be a formalist or a functionalist about the unitary executive (Strauss is of course a functionalist), and find Strauss’s exposition of the differences valuable.  

That example points to other issues. First, the articles have enduring value even if they are flawed to some extent, because once we identify the flaws—as the follow-on literature does—we can clean up the exposition and retain the core insights. Second, the older articles are the more they will depart from today’s conventions about proper scholarly style. The ones that endure, though, are recognizably stylistically continuous with today’s conventions. Today’s equivalent wouldn’t write the article in the way Thayer did, but—to quote Justice Kagan—trust me on this: if you compare Thayer’s article to others published in the 1890s you’ll think that the others are really old-fashioned while Thayer’s is just a little quirky. That’s even more true of Powell’s, the second oldest on my list. I wouldn’t bridle if someone described Powell’s style as Scalia-esque. “Sometimes Congress is silently silent, and sometimes it’s vocally silent” is Powell’s way of making his central point. 

Enduring constitutional scholarship may well be motivated by the issues of the day but  it endures because it sees that those issues lead us to identify deep structures of constitutional discourse. At the same time, though, I think the articles endure in part because they don’t present themselves as dealing with deep structures—they aren’t expressly theorized at a high (or maybe deep) level (my sense is that articles that are so theorized can be useful as primers for novices to the discourse but it’s the articles that actually do the work that “explain” or demonstrate the value of using the deep structural analysis).  

Having written that sentence I’m led back to something I wrote in the first of these posts: that normative scholarship that focuses on recent Supreme Court cases tends not to endure. Maybe the point is that mostly that scholarship thinks that it’s getting at something deep (about distributive justice or equality or …) but it’s actually doing no more than present a contemporary partisan position as a deep truth. Again, the article that endure let us think about the issues we care about no matter what side we take in contemporary controversies. 

A final question: Can we know when we first read it that an article really will endure (or, maybe better, has the characteristics—a fair degree of transsubstantivity and exposure of deep structures—that articles that endure have)? I think the answer is, “Sometimes but not always.” Which means, alas, that I think you’ll have to read a lot of dross to find the gold.  



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